439 F.3d 1197 (10th Cir. 2006), 04-2117, Fuerschbach v. Southwest Airlines Co.

Docket Nº:04-2117.
Citation:439 F.3d 1197
Party Name:Marcie FUERSCHBACH, Plaintiff-Appellant, v. SOUTHWEST AIRLINES CO.; City of Albuquerque; Duane Hoppe; Eldon Martinez; Michael Santiago; and Tina Marie Tapia, Defendants-Appellees.
Case Date:February 28, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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439 F.3d 1197 (10th Cir. 2006)

Marcie FUERSCHBACH, Plaintiff-Appellant,

v.

SOUTHWEST AIRLINES CO.; City of Albuquerque; Duane Hoppe; Eldon Martinez; Michael Santiago; and Tina Marie Tapia, Defendants-Appellees.

No. 04-2117.

United States Court of Appeals, Tenth Circuit.

Feb. 28, 2006

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-03-540 RHS/LFG)

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Thomas P. Gulley, Jontz Dawe Gulley & Crown, P.C., Albuquerque, New Mexico for the Plaintiff-Appellant.

Jeffrey L. Baker (L. Helen Bennett, The Baker Law Firm, Albuquerque, New Mexico; and Duane C. Gilkey and George C. Kraehe, Gilkey & Stephenson, P.A. with him on the briefs), The Baker Law Firm, Albuquerque, New Mexico for the Defendant-Appellees.

Before LUCERO, circuit Judge, BRORBY, senior Circuit Judge, and McCONNELl , circuit Judge.

LUCERO, Circuit Judge.

Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of the prank. She sued the officers and the City of Albuquerque under 42 U.S.C. § 1983, alleging violations of her Fourth and Fourteenth Amendment rights. Fuerschbach also asserted claims for various state torts against the officers, the city, her supervisors, and Southwest Airlines. The district court found that the officers were shielded from the constitutional claims by qualified immunity, and granted summary judgment to all defendants on all other claims. We conclude that Fuerschbach's allegations are sufficient to survive the assertion of qualified immunity. Whether the characterization of the incident as a prank permits the officers to escape liability is a question for the jury to resolve. As such, we REVERSE the grant of qualified immunity to the officers. We also REVERSE the grant of summary judgment to the officers and the city on several state claims. In all other respects, we AFFIRM the judgment of the court below.

I

Marcie Fuerschbach worked as a customer service representative for Southwest Airlines ("Southwest"), serving travelers at Southwest's main ticket counter in Albuquerque's Sunport airport.1 Southwest prides itself on being a "fun-loving, spirited company." This lighthearted image extends from marketing and customer relations into the company's corporate culture. As part of this fun-loving atmosphere, newly hired employees who have successfully completed an initial probationary period often find themselves subject to a prank commemorating the occasion. In one instance, an employee was led onto an airplane, the doors were sealed, and the

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employee was flown to Dallas. Another employee was dressed in a hula skirt and made to perform a hula dance for customers. Aware of this tradition, Fuerschbach knew it was possible that her colleagues would play a prank on her at the end of her probationary period.

Fuerschbach's supervisor, Tina Marie Tapia, and other customer service supervisors had discussed various pranks to commemorate Fuerschbach's successful completion of probation. Because Tapia had once been subjected to a similar prank, and had thought the experience amusing, she suggested a mock arrest. The others agreed. On the day of the incident, one of the supervisors called the Albuquerque police department and requested that officers come to the Southwest counter.2 When Officers Duane Hoppe and Eldon Martinez arrived at the ticket counter, the supervisors told them of the plan to arrest Fuerschbach as a celebratory prank. The officers, who were employed by the City of Albuquerque's City Aviation Department and detailed to the Sunport, asked if Fuerschbach "would be okay with it," and Tapia assured them that she would. With the assistance of the supervisors, the officers developed and executed the plan for staging the arrest.

Fuerschbach was working at a ticket counter crowded with customers when the two uniformed and armed police officers approached her. One of the officers ordered Fuerschbach to go with him to answer some questions, and proceeded to escort her to the end of the ticket counter. Once there, the other officer informed Fuerschbach that during the course of performing her background check, the City Aviation Department discovered an outstanding warrant for her arrest. The officers asked Fuerschbach if she had ever been arrested before, and she replied that she had not. When she began to explain that there must have been some mistake, and that there were no outstanding warrants, the officers interrupted her and demanded that she take off her badges and turn them in. Fuerschbach complied and handed her badges to Tapia, who was standing close by. Hoppe and Martinez then asked if Fuerschbach had anyone to "bail her out," and she responded tearfully that she hoped Tapia would. After asking for a tissue to dry her tears, Fuerschbach asked if the arrest were a joke. Both officers refused to respond. Instead, Hoppe asked if Fuerschbach had any unpaid traffic citations.

The officers then placed Fuerschbach's hands behind her back and handcuffed her tightly. A crowd of employees and customers formed to watch the unfolding arrest. One of the officers said to Fuerschbach, "[w]e don't want to embarrass you anymore so we'll take you to the elevator so we don't have to walk in front of all those people." Fuerschbach continued to cry. The officers led Fuerschbach in handcuffs fifteen feet to the elevator, at which point someone jumped out and yelled, "congratulations for being off probation." The officers removed the handcuffs and people began to clap. Fuerschbach, however, continued to cry. Later that day, she was found in the break room weeping and was sent home. As a result of her distress, Fuerschbach began seeing a psychologist for treatment. The psychologist diagnosed Fuerschbach as suffering

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from post-traumatic stress disorder ("PTSD").

Claiming a violation of her Fourth and Fourteenth Amendment rights, Fuerschbach sued Hoppe, Martinez, and the City of Albuquerque under 42 U.S.C. § 1983. In the same action she sued Southwest, Tapia, and Michael Santiago, a Southwest manager, for intentional infliction of emotional distress. Claims of conspiracy, false imprisonment, false arrest, assault and battery, and defamation were asserted against all defendants, along with a claim for punitive damages.3 Following discovery and extensive briefing, the district court first granted summary judgment to the officers and the City of Albuquerque. Although finding that Fuerschbach's constitutional rights were violated, the district court found that her rights were not clearly established. On that basis, the court afforded Hoppe and Martinez qualified immunity and dismissed the § 1983 claims asserted against them. Because Fuerschbach "has offered nothing that would indicate that any of the challenged actions were authorized or ratified by the City of Albuquerque," the court granted summary judgment on the § 1983 claims asserted against the city. Concluding that all the state law claims lacked merit, the court granted summary judgment to the officers and the city and dismissed all claims with prejudice. In a separate order, the court granted Southwest, Santiago, and Tapia's motion for summary judgment. The court concluded that the New Mexico Workers Compensation Act barred all claims against Southwest and dismissed the claims asserted against the airline. After reviewing each of the state law claims asserted against Santiago and Tapia, the court determined that the defendants were entitled to judgment as a matter of law. Fuerschbach appeals.

II

We review de novo a district court's ruling on qualified immunity. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002). To determine whether qualified immunity shields a public official from the burdens of litigation, we conduct a two-part inquiry. We first ascertain whether the plaintiff's allegations, if true, amount to a constitutional violation. Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). If so, the defendant "may nevertheless be shielded from liability for civil damages if [his] actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 739 122 S.Ct. 2508 (citation omitted).

A

Fuerschbach alleges that Officers Hoppe and Martinez violated her Fourth and Fourteenth Amendment rights. Applicable to the states through the Fourteenth Amendment's Due Process Clause, the Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." U.S. Const. amend. iv. To determine whether an officer violated the Fourth Amendment, courts must ascertain whether an alleged incident constitutes a seizure and, if so, whether such seizure was unreasonable.

Fuerschbach's allegations, if true, establish that she was seized. A seizure occurs for Fourth Amendment purposes when "a reasonable person would have

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believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). The factors identified in United States v. Hill, 199 F.3d 1143 (10th Cir. 1999), guide our determination of whether a person was, in fact, seized. These factors include:

1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by...

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